PART III. CH. IX. S. 3. All equitable grounds available. References by compulsion. Error in law or fact. references under Arbitration Act, 1889. SECTION III. FOR WHAT CAUSES AN AWARD MAY BE SET ASIDE ON MOTION. 1. Where the conduct of the arbitrator is corrupt or irregular.] -By the Arbitration Act, 1889, s. 11 (2), where an arbitrator or umpire has misconducted himself, or an arbitration or award has been improperly procured, the court may set the award aside. We may remark as a general rule that every ground of relief in equity against an award has always been held to be equally open in the courts of common law on motion in a summary way to set the award aside (g). An award on a compulsory reference under the Common Law Procedure Act, 1854, could be set aside only on the same grounds as awards on references by agreement (). In neither class of arbitrations could an award be impeached on the ground that it was an erroneous decision in law or fact when the alleged error did not appear on the face of the Compulsory award (i). But by Order LIX. r. 3, "where a compulsory reference to arbitration has been ordered, any party to such reference may appeal from the award or certificate of the arbitrator or referee upon any question of law; and on the application of any party the court may set aside the award on any ground on which the court might set aside the verdict of a jury. Such appeal shall be to a Divisional Court who shall have power to set aside the award or certificate, or to remit all or any part of the matter in dispute to the arbitrator or referee, or to make any order with respect to the award or certificate, or all or any of the matters in dispute that may be just." Corruption or partiality of arbitrator. The decision by the Divisional Court will be final unless special leave be given to appeal (). In every court of law or equity the award will be set aside (g) R. v. Wheeler, 3 Burr. 1257; Lingood v. Eade, 2 Atk. 501. (h) Hogg v. Burgess, 27 L. J. Ex. 318, S. C. 3 H. & N. 293; Holgate v. Killick, 31 L. J. Ex. 7; Mundy v. Bluck, 9 C. B. N. S. 557, S. C. 30 L. J. C. P. 193; Holloway v. Francis, 9 C. B. 559; Brown v. Hellaby, 26 L. J. Ex. (i) Baggalay v. Borthwick, 10 (k) Judicature Act, 1884, 47 & PART III. CH. IX. S. 3. on motion, if it be proved that the arbitrator is corrupt or partial (1), or that he is secretly interested in the subject referred (m). Oral evidence to show that the arbitrator after Evidence of the award had admitted that he had been bribed, was held not alleged adsufficient to set aside the award, the arbitrator himself not being called (n). missions. conduct of There may be ample misconduct in a legal sense to make Legal misthe court set aside an award, even where there is no ground arbitrator. for imputing the slightest improper motive to the arbitrator (o). Thus, the award will be set aside if the arbitrator Refusing time to get refuse to postpone a meeting for the purpose of allowing a counsel. party time to get counsel on his part, where the other side. unexpectedly appears by counsel (p); so if he receives affidavits instead of vivâ voce evidence, when he is directed to examine the witnesses on oath (q); but not if he omit to Omitting to swear the witnesses and the party at the meeting do not swear witrequest him to administer the oath, or after objecting, subsequently acquiesce in the mode of examination (1). nesses. case. The award may be impeached if the arbitrator make his Not hearing award without having heard all the evidence (s), or having allowed the party reasonable opportunity of proving his whole case (t). So, also, if, contrary to the principles of Examining natural justice, he examine a witness or a party privately or in the absence of his opponent; unless the irregularity be subsequently waived by the parties (u). witness, party properly. If the arbitrator proceed ex parte without sufficient cause Proceeding ex or without giving the party absenting himself clear notice of parte imhis intention so to proceed, the award will be avoided (x). So, likewise, if he refuse to hear evidence on a claim within scope of the reference, on a mistaken supposition that it is (t) Pepper v. Gorham, 4 Moore, 148; Maunder, In re, 49 L. T. 535. See P. II. ch. 4, s. 1, d. 6, p. 188. (u) Dobson v. Groves, 6 Q. B. (x) Gladwin v. Chilcote, 9 Dowl. 550. p. 197. Refusing to consider a matter in difference. PART III. CH. IX. S. 3. One of several arbitrators using false case and opinion. Delegating authority to one another. Two of three acting alone. arbitrators Arbitrators appointing umpire by lot. Umpire hearing interested arbitrator. Umpire not re-hearing case. not within it (); but not if he erroneously reject admissible or receive inadmissible evidence (z). His refusing to hear additional evidence tendered, when the whole case is referred back to him by the court, is fatal (a), but not so when the award is sent back with a view to a particular amendment only being made (b). When there are several arbitrators, if one of them take counsel's opinion on an incorrect statement of the facts, and knowingly act upon it, the award will be set aside, but not if he take an opinion on a case truly drawn up (c). So if one delegate his authority of deciding a point of law to another absolutely (d), but not if he merely give up his own opinion to the other (e). So, also, if they execute the award separately (f). Even when the submission provides that an award made by any two out of the three arbitrators shall be valid, if two of them hold meetings alone, without notice to the third, the award may be impeached; but not if after notice the latter stay away (g); so it will be bad, if the two exclude the third from the meetings by force or fraud, or make an award without first taking his opinion (h). An umpirage, or award of an umpire, may be set aside, if the two arbitrators appoint the former by lot and not by choice (i), unless both nominees are acknowledged to be fit to be umpires (), or the parties have consented to that mode of appointment (1). Where an umpire sat with arbitrators, one of whom was secretly interested, the umpire's award was set aside (m). So also, if the umpire make his award, refusing to rehear the evidence, his decision will be set aside; but the (y) Samuel v. Cooper, 2 A. & E. 752. (z) Hagger v. Baker, 14 M. & W. 9. See P. II. ch. 4, s. 1, d. 11, p. 199. (a) Nickalls v. Warren, 6 Q. B. 615. (b) Howett v. Clements, 1 C. B. 128. See P. II. ch. 10, s. 2, p. 489. (c) Hare, In re, 6 Bing. N. C. 158. See P. II. ch. 4, s. 2, d. 3, p. 211. (d) Little v. Newton, 9 Dowl. (e) Eardley v. Steer, 4 Dowl. 423. p. 217. (f) Wade . Dowling, 4 E. & B. 44. (g) Dalling v. Matchett, Willes, 215. (h) Templeman and Reed, In re, 9 Dowl. 962. See P. II. ch. 4, s. 3, d. 5, p. 219. (7) Tunno and Bird, In re, 5 B. & Ad. 488. See P. II. ch. 4, s. 4, d. 3, p. 237. (m) Blanchard 2. Sun Fire Office, 6 Times L. R. 365. award will be sustained if the parties, by the submission, or by their conduct, have agreed to relieve him from the duty of re-examining the witnesses (n). PART III. CH. IX. S. 3. II. When the award a mistaken decision in law or fact.]-On Erroneous a voluntary submission, an award, good on its face, cannot arbitrator. judgment of be set aside for an erroneous judgment of the arbitrator on a question of law; nor will the court review his decision as to the facts, or allow the merits of the case to be gone into (o); although in very early times the Court of Chancery took upon itself to examine the propriety of the arbitrator's decision as to the amount of damages, and set aside the award where the damages awarded were deemed excessive (p). We have seen above, p. 664, that on a compulsory reference the case is different. The court on a voluntary reference will not set aside an Arbitrator award on a suggestion that the arbitrator has allowed in deciding on legality of account premiums of insurance on an illegal voyage to a contract. hostile port, the legality of the ground of the insurance being for the consideration of the arbitrator (9). mistake of arbitrator. When the arbitrator has made a mere mistake in the com- Whether award set putation of the amount awarded, intending to give a different aside for mere sum than that set down in the award, the present inclination of the courts of law is to hold that the award cannot on that account be set aside. The question how far an award is impeachable for a mistake, either apparent on the face of the instrument or not, whether made out by extrinsic statements of the arbitrator, or raised purposely in his award for the opinion of the courts, has been already discussed at length (”). The later decisions in equity seem to enable one to pronounce, that the modern decisions of the common law courts on this head will meet with the sanction and adoption of the equity judges, except that the award will be set aside in (n) Salkeld and Slater, In re, 12 A. & E. 767; Adams v. Great North of Scotland Rail. Co. (1891), 1 A. C. 31. See P. II. ch. 4, s. 4, d. 5, p. 242. (0) Lancaster v. Hemington, 4 A. & E. 345. See P. II. ch. 5, Vern. 251; 1 Eq. Cas. Ab. 49; (7) Wohlenberg v. Lageman, 6 (r) Phillips v. Evans, 12 M. & s. 8, d. 1, p. 303. W. 309. See P. II. ch. 5, s. 8, (p) Cooper v. 3 Rep. in p. 303. Chanc. 42, 76, A.D. 1672, S. ̊C. 2 PART III. CH. IX. S. 3. Void award when set aside. Award made after time expired. equity, where the mistake is admitted by the arbitrator. But the question will rarely arise in voluntary references out of court, for the arbitrator there may amend a clerical mistake in his award (8). III. When the award is a nullity.]-If the award be altogether void, and can be considered a nullity, and nothing can be done upon it but by suit, as where the arbitrator's authority has been revoked, the court will not usually interfere to set it aside, because any suit brought to enforce it must fail. But there is an exception, where something may be done under the award, which renders the interference of the court necessary; for instance, where the award ordered a verdict to be entered, the court would set it aside, though the submission had been revoked; since, if the award were allowed to stand, the party would be entitled to judgment, and might issue execution (t). An award made after the time for making it has expired, will often be set aside (u), unless the conduct of the parties Or revocation. have amounted to an enlargement of the period (r); so also, as just noticed, will an award made after the submission has been revoked, either by the will of the party or by his death (y). Improper stamp. Deficient recital. Two awards, The want of a proper stamp is no ground for setting aside an award, when no steps have been taken to enforce it (z). Nor can it be attacked for the want of a recital to show that the arbitrator has jurisdiction (a), nor for a false recital (b). IV. When the award is not final.]-When the award is not each deciding final it will be set aside. If, without special power, the arbitrator make two awards, each deciding part of the matters referred, and not one entire award on all together, both may part, no final award. (s) 52 & 53 Vict. c. 49, s. 7 (c). (t) Doe d. Turnbull v. Brown, 5 B. & C. 384; Hobbs v. Ferrars, 8 Dowl. 779; Worrall v. Deane, 2 Dowl. 263. (u) Swinford and Horn, In re, 6 s. 1, d. 2, p. 136. 389. |